The protest and the predators

The meeting room where CIA Director nominee John Brennan’s confirmation hearings were being held was crammed by mid-afternoon on Thursday, February 7, 2013. The US Senators who had questions for the nominee sat talking softly among themselves as they waited for the proceedings to begin. Many of them had spent the morning going through the pages of legal opinions they had been requesting from the Obama Administration for several months.           

It was not the Senators who broke the constrained decorum of the hearing that day. Just as the staid, suit-clad John Brennan took to the microphone, beginning his answers with thank yous to his wife and then to his grandmother, protesters in the audience disrupted the hearing. They were able to stop it once, then twice and a third time until it had to be stopped completely and the room cleared of anyone but the Senators with questions for Brennan. Belonging to the anti-war group Code Pink, one of the protesters tried to remind Brennan of children being killed by the drones, another held up a list of victims in Yemen, Somalia and Pakistan and another a sign saying “Drones Make Enemies”.

Their protest was well directed. During his tenure serving as counter terrorism advisor to the Obama Administration, John Brennan pushed the use of unmanned Predator drones – often armed with Hellfire missiles – to the centre of the Obama Administration’s redefined War on Terror. The route to drone supremacy has been a surreptitious one relying sometimes on exaggerations of their “surgical accuracy” and precision. In a speech in July 2011, Brennan claimed that not a single “collateral” death had taken place as a result of drone strikes in Pakistan. This was proven untrue by the Bureau of Investigative Journalism which looked at 116 secret drone strikes during the period in which 45 or more civilians appeared to have died. According to figures compiled by the UK based Bureau, a total of 311 drone strikes have been ordered during the Obama Administration, with casualties anywhere numbering between 473 to 893, 176 of them reportedly children.

Hearing trouble

When the hearings recommenced, and the issue of drones was brought up by the Senators themselves, Brennan predictably and staunchly defended the programme, saying that the targets were “rigorously selected” but refusing to give any further details. When pushed about the recently released US Department of Justice white paper and its assertion that even American citizens could be killed if an “an informed, high-level, official of the US government has determined that the targeted individual poses an imminent threat of violent attack against the United States”; Brennan was unfazed. He responded simply by insisting that the strike against Anwar Al-Awlaki, one of two American citizens killed by drones in 2009, was justified because he was a “legitimate military target“. The executive branch, Brennan contended, is the branch of government with the power to decide who constituted a threat to the country.

His answer evaded the controversy over the issue. According the Due Process Clause of the United States Constitution, which deals with the provision of justice, no United States citizen may arbitrarily deprived of life, liberty or property by the Government without sanction of law. It is because of this constitutional right that the 2009 drone strike on Anwar Al-Awlaki, which killed not just the cleric but also his sixteen year-old son – also a US citizen – is considered tantamount to giving the Executive Branch the right to order the killing of any American citizen with little or no explanation. To get further information on the Awlaki strike and the possibility of such repercussions, the American Civil Liberties Union filed a case last year asking US Courts to force the Obama Administration to release factual details and the legal basis of the strike. Their efforts have so far been unsuccessful, with a judge in New York dismissing their request on January 2, 2013 saying that even though the matter was one of grave import, she did not think that the Administration had violated the Freedom of Information Act Statute under which the request was filed.

Legalcraft

Where the issue of drone casualties is concerned, the Obama Administration under Brennan’s advice has embraced artful redefinitions of what counts as a “casualty” to insure that their construction of drone strikes as sterile and precise combat tools remains unchallenged. As reported by the New York Times earlier in the year, the Obama Administration “counts all military age males in a strike zone as combatants” unless there is explicit evidence, posthumously proving them innocent. What this means is that everyone killed in a drone strike in Yemen, Somalia or Pakistan is unilaterally defined as a combatant by the United States by the act of being in the area selected as a target by drone operators. Under this definition, it is impossible for there ever to be any civilian casualties caused by drone strikes at all, hence making drones a cost-free way to engage in the hunt of terrorists without ever having to deal with the political cost of casualties.

Brennan’s art of redefining legal concepts to suit the reconfigured war on terror does not stop there. As Christopher Heyn, the United Nations Special Rapporteur on Extra Judicial Killings said in June 2012, the Obama Administration’s drone strikes “threaten 50 years of international law since World War II“. Of greatest concern to the United Nations has been the Administration’s assertion that the 9/11 attacks constituted a “declaration of war” by al-Qaeda against the United States and hence gives the latter the power to pursue the group regardless of which country’s borders it may be located in. This is precisely the argument used by the Obama Administration to justify its attacks in the tribal areas of Pakistan, even though it has not officially declared war against the country. Its consequences are a legal limbo, where the victims of the attacks cannot avail either the international law of war under the Geneva Conventions or being non-citizens also cannot bring claims under US law.

Moral challenges

It is this troubling lawless frontier in which drones operate that finally pushed the United Nations Office of the High Commissioner for Human Rights to launch an investigation in January of this year into whether the attacks constitute a war crime. Instituted in response to requests from Russia, China and Pakistan, the Commission is supposed to look into the factual evidence concerning civilian casualties and also into the “lawfulness and proportionality” of the attacks. The findings of the UN Commission are to be a direct response to arguments made by the Administration that the attacks are justified under Article 51 of the United Nations Charter that allow states to act in self-defence.

The United Nation’s move is replete with good intentions, and on the international legal front, any response to US overreach on drones even if it is a belated one, is welcome indeed. What remains unclear is whether the United Nations and its tools of investigation will be able to penetrate into the web of secrecy that even United States Senators and Members of Congress seem to have failed to pierce. Under John Brennan’s leadership at the CIA, drones are likely to recede even further into the realm of furtive secrecy and unknown guidelines. This would leave United Nations investigators with little information from the United States, save assurances such as the ones already provided, that do little more than insist that are indeed some rules in place but that the world must simply trust the United States in determining whether targets, practices and strikes are lawful and proportional.

In addition, absent on both the international front and in the domestic debate on drones inside the United States is a discussion of the moral challenges imposed by using lethal killing technology where the killers are never themselves in danger and the targets have little notice of the extent of the surveillance they may be facing or the probability of an attack. Juxtaposed against the barbarity of terrorist attacks, the bomb blasts and beheadings of aid workers extremism afflicted countries; drone attacks and their vocabulary of curative words such as “surgical” and “precision” play on the Americans and the worlds frustration with terrorism and insist that any solution (and especially one that can be operated by remote control) is better than none at all. In this sense, while different in content and technique, drone attacks continue a perpetuation of the regime of fear that have kept the American public largely silent as Iraq, then Afghanistan and now Pakistan are ravaged and hundreds of thousands of people killed in the name of eliminating terror.

See no evil, hear no evil

Given this context, John Brennan’s reticence at the hearing where he was nearly guaranteed a confirmation was not surprising. The political divisions of the United States Senate worked neatly in his favour with Democratic Senators unwilling to push him too hard on the secret details of remote control killing and Republican Senators seeming unsatisfied by the rate of terrorist elimination or interrogation. Their collective lack of outrage all highlighting the extent of American delusions over drones; and the still nourished belief in Washington that a remote control plan of elimination, where no Americans die and all terrorists are eliminated, is the best plan for the future.

Under John Brennan’s tenure at the CIA the skies over Pakistan, Somalia Yemen and probably several more newfound and yet undeclared foes will likely be full of American drones, flying and firing, with their targets secret and their casualties uncounted as the War on Terror recedes even deeper into a CIA-led war of spies and secrets. When John Brennan’s confirmation hearing ended, many of the Senators paused to speak to the nominee and to congratulate him. Outside, the Code Pink protesters who had been banished from the hearing still stood with their signs and the long rolling lists of drone attack victims they had tried to put before television cameras and American viewers. In the words of their founder Medea Benjamin, the hearing had only confirmed one thing that “our US Senators will not do anything to stop the CIA from its present course, acting as a global death squad”. Far away in northwestern Pakistan, their words rang true as yet another drone strike targeted the remote village of Babar Ghar in Waziristan firing missiles on an alleged militant compound and killed six people.

Rafia Zakaria is on the board of directors of Amnesty International. She is a lawyer and a Political Science PhD candidate at Indiana University.

Follow her on Twitter: @RafiaZakaria